United States District Court, D. South Carolina, Rock Hill Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE
proceeding pro se, seeks relief in this court
pursuant to 28 U.S.C. § 2255. ECF No. 128. The
Government filed a response in opposition. ECF No. 131. On
July 11, 2016, Defendant replied. ECF No. 134. This matter is
now ripe for resolution.
December 21, 2010, Defendant was indicted in this District
for conspiracy to possess cocaine with intent to distribute
involving 5 kilograms or more, in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(A). ECF No. 2. On May
18, 2011, Defendant entered into an amended written plea
agreement to plead guilty to count 1 of the Indictment. ECF
No. 67. On May 18, 2011, Defendant appeared before the court
and after a thorough Rule 11 hearing (which Defendant does
not challenge), entered a guilty plea to the count charged in
the Indictment. ECF No. 71.
Pre-Sentence Report (PSR) assessed a two point increase in
Defendant's base offense level due to possession of a
dangerous weapon (including a firearm), pursuant to U.S.S.G.
§ 2D1.1(b)(1). See PSR ¶¶ 43, ECF No.
95. Defendant objected to a statement he made about carrying
a firearm being used against him to support the enhancement,
arguing that he was a confidential informant at the time, and
also objected to the weight of drugs attributed to him.
Addendum to PSR, ECF No. 95-1. In response, the Probation
Officer noted that he consulted with the Government regarding
protection from self-incriminating statements, and was told
that Defendant was not under any such protection.
Id. at 2. Defendant also objected to being enhanced
for a firearm. Id. At sentencing, the court
sustained objection 1 as to the drug amount, holding
Defendant responsible for a lesser amount, and Defendant
withdrew objection 2 regarding the firearm. ECF No. 84.
Although Defendant's guideline range was decreased to
108-135 months based on a total offense level of 31 and a
criminal history category of I (See SOR, ECF No.
87), Defendant was sentenced to the statutory mandatory
minimum of 120 months. ECF No. 86.
August 26, 2011, Defendant filed a pro se motion for
reconsideration of his sentence. ECF No. 100. After
discussion with his attorney, Defendant made a motion to
dismiss the motion for reconsideration, which was granted.
ECF Nos. 104, 106. Defendant also appealed his sentence, but
voluntarily withdrew the appeal as well. The appeal was
dismissed on December 19, 2011. ECF No. 113.
Johnson and Welch
26, 2015, the Supreme Court held that the residual clause of
the Armed Career Criminal Act ("ACCA") violates due
process as it "denies fair notice to defendants and
invites arbitrary enforcement by judges." Johnson v.
United States, 576 U.S. at, 135 S.Ct. 2551 (2015). By
holding the residual clause unconstitutionally vague, the
Court narrowed the predicate offenses that could serve to
enhance a sentence to those in the enumerated or force
clauses. The residual clause can no longer support a
defendant's classification as an armed career criminal.
April 18, 2016, the Supreme Court decided Welch v. United
States, 136 S.Ct. 1257 (2016), which held that the newly
established right recognized in Johnson is
retroactive to cases on collateral review.
argues that he should be granted relief because his two point
enhancement for possession of a dangerous weapon should be
invalidated under Johnson. ECF No. 128. He also
argues that, absent the mandatory minimum sentence, his
guideline range would have been 87-108 months (after
application of Amendment 782), and thus his sentence
"would have been lower with application of the correct
sentencing guideline range." Id.
Defendant's arguments fail on both points.
Johnson and its progeny have no effect on the two
point enhancement for possessing a firearm in U.S.S.G. §
2D1.1(b)(1). As discussed above, Johnson serves to
invalidate a portion of the definition of a "crime of
violence" as utilized in the ACCA. Defendant argues that
the reasoning in Johnson should apply to the
sentencing guidelines; however, even if it did, it would not
serve to invalidate the specific two point enhancement that
affected Defendant's sentence. While Defendant is correct
that some courts have applied Johnson reasoning
beyond the ACCA, for example to the residual clause of the
career offender portion of the sentencing guidelines or to
the residual clause in § 924(c), there is simply no like
reasoning that would invalidate the two level enhancement for
possessing a dangerous weapon. U.S.S.G. § 2D1.1(b)(1)
does not have a residual clause that could be held
unconstitutionally vague; instead, it clearly lays out which
convictions (all related to drug offenses) could receive the
two point enhancement for possessing a dangerous weapon.
Therefore, Johnson cannot serve to invalidate the
enhancement received by Defendant.
Defendant was given a mandatory minimum sentence based on his
drug conviction, not the possession of the firearm. The
conspiracy to possess with intent to distribute statute
prescribes this mandatory minimum:
[A]ny person who violates subsection (a) of this section
shall be sentenced as follows: in the case of a violation of
subsection (a) involving . . .5 kilograms or more of a
mixture or substance containing a detectable amount of . . .
cocaine. . . such person shall be ...